throbber
PGR2020-00063
`Petitioner’s Request for Rehearing
`Filed on behalf of Supercell Oy
`
`By:
`RAJIV P. PATEL, Reg. No 39,327
`JENNIFER R. BUSH, Reg. No. 50,784
`KEVIN X. McGANN, Reg. No. 48,793
`MICHAEL J. SACKSTEDER (pro hac vice)
`GEOFFREY R. MILLER (pro hac vice)
`EMILY J. BULLIS (pro hac vice)
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Telephone: (650) 988-8500
`Facsimile:
`(650) 938-5200
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner
`
`
`Case No. PGR2020-00063
`Patent 10,406,432 B2
`__________
`
`
`
`PETITIONER’S REQUEST FOR REHEARING UNDER 37 C.F.R. §42.71
`
`
`
`
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`
`
`EXHIBIT LIST (37 CFR § 42.63(e))
`
`Exhibit
`
`Description
`
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`
`
`U.S. Patent No. 10,406,432 to Watanabe
`
`Prosecution History of U.S. Patent No. 10,406,432
`
`Declaration of Joseph LaViola, Ph.D.
`
`U.S. Patent No. 9,392,212 to Ross
`
`Chris Lankford., Nov. 2000, “Effective eye-gaze input into
`Windows.” In Proceedings of the 2000 symposium on Eye tracking
`research & applications, (ETRA ’00, Nov. 6-8, 2000, Palm Beach
`Gardens, FL), Association for Computing Machinery, New York,
`NY, USA, 23–27, ISBN: 1-58113-280-8
`
`U.S. Pat. Pub. No. 20160093105 to Rimon
`
`“Unify Community” – Unity Game Engine Wiki – “Object Label”
`Article (“ObjectLabel”), available at
`http://wiki.unity3d.com/index.php?title=ObjectLabel (last updated
`Nov. 23, 2014)
`
`U.S. Pat. Pub. No. 20150153913 to Ballard
`
`Bowman, D. A., Poupyrev, I., Kruijff, E., LaViola, J. J. (2005),
`3D User Interfaces: Theory and Practice, Germany:
`Addison-Wesley
`
`Robert Jacob, April 1990, “Eye Movement-Based Interaction
`Techniques,” Proceedings of the SIGCHI ’90 Conference on
`Human Factors in Computing Systems, (CHI ’90, April 1-5, 1990,
`Seattle, WA, USA), ACM Press, New York, NY, USA, 11-18
`
`Linda Sibert et al., April 2000, “Evaluation of Eye Gaze
`Interaction” Proceedings of the SIGCHI ’00 Conference on Human
`Factors in Computing Systems, (CHI ’00, April 1-6, 2000, The
`Hauge, Netherlands), ACM Press, New York, NY, USA, 281-288
`
`i
`
`
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`
`Exhibit
`
`Description
`
`LaViola, J., “3D Gestural Interaction: The State of the Field,”
`ISRN Artificial Intelligence, Vol. 2013, Article ID 514641,
`18 pages, 2013
`
`Invalidity Chart – Primary Reference: Ross
`
`Invalidity Chart – Primary Reference: Ballard
`
`Internet Archive Copy of Ex. 1007 Dated Feb. 16, 2015
`
`Declaration of Guang Y Zhang for Exhibit 1015
`
`Curriculum Vitae of Joseph J. LaViola, Ph.D.
`
`Decision, GREE, Inc. v. Supercell Oy, No. 19-1864 (Fed. Cir. Nov.
`19, 2020)
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`
`
`
`
`ii
`
`
`
`

`

`PGR2020-00046
`Petitioner’s Request for Rehearing
`
`TABLE OF CONTENTS
`
`Page
`
`II.
`
`INTRODUCTION AND REQUESTED RELIEF ..................................................... 1
`LEGAL STANDARD ................................................................................................ 1
`BASIS FOR THE REQUESTED RELIEF ................................................................ 2
`I.
`Patent Owner’s Misrepresentation Caused the Board to
`Misapprehend Petitioner’s § 101 Arguments .................................................. 2
`The Board Overlooked Several Differences Between Petitioner’s
`§ 101 Arguments and Those Considered by the Office .................................. 4
`A.
`Petitioner’s Argument No. 1 ....................................................... 4
`B.
`Petitioner’s Argument No. 2 ....................................................... 5
`C.
`Petitioner’s Argument No. 3 ....................................................... 6
`D.
`Petitioner’s Argument No. 4 ....................................................... 7
`E.
`Petitioner’s Argument No. 5 ....................................................... 8
`III. The Result Is Inconsistent With Eight Other Cases Between the
`Parties in Which the Board Found the Claims Ineligible .............................. 10
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016) ............................................................................ 5
`In re Smith,
`815 F.3d 816 (Fed. Cir. 2016) ............................................................................ 13
`In re TLI Commc’ns,
`823 F.3d at 612-13 ................................................................................................ 8
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ............................................................................ 2
`Internet Patents Corp. v. Active Network, Inc.,
`790 F.3d 1343 (Fed. Cir. 2015) ................................................................ 3, 6, 7, 8
`Tranxition, Inc. v. Lenovo (U.S.), Inc.
`664 F. App’x 968 (Fed. Cir. 2016) ............................................................... 3, 5, 6
`STATUTES AND RULES
`35 U.S.C. § 101 .................................................................................................passim
`OTHER AUTHORITIES
`37 C.F.R. § 42.71 ....................................................................................................... 1
`
`iv
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`INTRODUCTION AND REQUESTED RELIEF
`Pursuant to 37 C.F.R. § 42.71, Petitioner Supercell Oy (“Supercell” or
`
`“Petitioner”) respectfully requests rehearing of the Board’s Decision Denying
`
`Institution of Post Grant Review of U.S. Patent No. 10,406,432 (the “’432 Patent”)
`
`to Watanabe (Paper 10) (“Decision”) because the Board “misapprehended or
`
`overlooked” matters addressed by the Petition and thus abused its discretion in
`
`denying institution. See 37 C.F.R. § 42.71(c) and (d). Specifically, the Board
`
`appears to rely upon blatant misrepresentations made by the Patent Owner in its
`
`Preliminary Response causing a misapprehension and overlooking of Petitioner’s
`
`arguments under 35 U.S.C. § 101. Additionally, the Board misapprehends
`
`Petitioner’s arguments with respect to the identified abstract idea and, as a result, the
`
`Decision is inconsistent with several previous cases in which the Board invalidated
`
`claims reciting highly similar subject matter.
`
`LEGAL STANDARD
`A request for rehearing “must specifically identify all matters the party
`
`believes the Board misapprehended or overlooked, and the place where each matter
`
`was previously addressed in a motion, an opposition, or a reply.” 37 C.F.R.
`
`§ 42.71(d). “When rehearing a decision on petition, a panel will review the decision
`
`for an abuse of discretion.” 37 C.F.R. § 42.71(c). “An abuse of discretion is found
`
`if the decision: (1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an
`
`erroneous conclusion of law; (3) rests on clearly erroneous fact finding; or
`
`1
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`(4) involves a record that contains no evidence on which the Board could rationally
`
`base its decision.” Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`
`821 F.3d 1359, 1367 (Fed. Cir. 2016).
`
`I.
`
`BASIS FOR THE REQUESTED RELIEF
`Patent Owner’s Misrepresentation Caused the Board to Misapprehend
`Petitioner’s § 101 Arguments
`Patent Owner’s characterization of Petitioner’s arguments as “the exact
`
`same” as the arguments considered by the Office is a blatant misrepresentation
`
`designed to mislead the Board.
`
`Patent Owner presented a chart purporting to show overlap between
`
`Petitioner’s arguments under Prong One of Alice Step 1 and arguments considered
`
`by the Office during prosecution of the ’432 patent. POPR at 22-23. But this chart
`
`included only two rows and cites only two of seven arguments that Petitioner
`
`presented with respect to Prong One of Alice Step 1. The chart conveniently
`
`ignored almost twenty pages of § 101 analysis, of which six pages specifically
`
`addressed Prong One. Petition at 20-41. Characterizing Petitioner’s arguments as
`
`“the exact same” misled the Board by suggesting Petitioner’s Prong One
`
`arguments were limited solely to stating that the claims recite a mental process, a
`
`method of organizing human activity, and a manually achievable purpose.
`
`Petitioner maintains that the claims do recite such abstract ideas, but these
`
`statements were by no means the only arguments Petitioner raised in the Petition.
`
`2
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`Patent Owner’s assertion to the contrary caused the Board to overlook several of
`
`Petitioner’s § 101 arguments, as summarized in the chart below.
`
`Petitioner Argument
`Claims fall under certain methods of organizing human
`
`Comments
`Not considered by
`
`activity social activities, teaching, and following rules
`
`Examiner.
`
`or instructions subgrouping. Pet. at 27-28.
`
`
`
`The claims in Tranxition were similar to the ’432 patent. Not considered by
`
`Pet. at 28.
`
`Examiner.
`
`The abstract idea is similar to that in Internet Patents
`
`Examiner included
`
`Corp. Pet. at 29-30 (Step 1 analysis).
`
`Internet Patents in a string
`
`cite re Step 2. No
`
`substantive analysis or
`
`consideration at Step 1.
`
` “when the information providing condition is satisfied”
`
`Not considered by
`
`is a conditional limitation; there is no positively recited
`
`Examiner.
`
`step for determining whether the condition is satisfied.
`
`Pet. at 31.
`
`Mental step analogy to traffic control at a parking lot.
`
`Not considered by
`
`Pet. at 26-27.
`
`Examiner.
`
`3
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`II. The Board Overlooked Several Differences Between Petitioner’s § 101
`Arguments and Those Considered by the Office
`Patent Owner’s blatant misrepresentations of Petitioner’s arguments resulted
`
`in the Board overlooking several differences between Petitioner’s § 101 arguments
`
`and those considered by the Office. A more accurate comparison of Petitioner’s
`
`arguments and those considered by the Office demonstrates multiple instances in
`
`which the Examiner did not consider an argument advanced by Petitioner as well
`
`as instances in which the Examiner addressed a concept under a separate step of
`
`the § 101 analysis. These differences are shown in the subsections below.
`
`A.
`
`Petitioner’s Argument No. 1
`“[T]he ‘certain methods of organizing human
`activity’ grouping of abstract ideas includes a number of
`subgroupings that describe subject matter qualifying as an
`abstract idea. Among these subgroupings is ‘managing
`personal behavior or relationships or interactions between
`people,’ which includes ‘social activities, teaching, and
`following rules or instructions.’ October 2019 Update at
`6. The claimed process falls within this subgrouping as
`a social activity. The specification states that the virtual
`image display apparatus may be implemented as a game
`processing apparatus, or ‘various types of simulations for
`driving, job training, or the like, trainings in medical
`fields, monitoring products, and movie or music
`appreciation.’ Ex. 1001 at 16:21-28. These applications
`are all well established and conventional human social
`
`4
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`
`activities. The claims are not limited to the gaming
`space, and are broadly worded to monopolize all these
`applications of providing information based on where a
`person is looking.” Pet. at 27-28.
`
`This argument was not presented to the Examiner. That this method of
`
`organizing human activity falls under the “social activity” subgrouping was not
`
`considered by the Office.
`
`B.
`
`Petitioner’s Argument No. 2
`“The Federal Circuit has determined that claims
`directed to automating manually-achievable purposes
`are abstract. Here, Tranxition, Inc. v. Lenovo (U.S.),
`Inc. is instructive. 664 F. App’x 968, 971 (Fed. Cir.
`2016). The Federal Circuit considered the eligibility of a
`patent directed to the “migration of configuration settings
`from an old computing system to a new computing
`system.” Id. It noted that the patent at issue sought to
`solve problems encountered during migration of data
`between two computers, which humans had previously
`done manually, simply by automating the process. Id. It
`noted that such automation of a manual process did not
`constitute an improvement in computer functionality, as it
`provided no efficiency gains for the target computer, and
`thus was directed to an abstract idea. Id. at 971-72 (citing
`Enfish, 822 F.3d at 1338). The same analysis applies to
`the ’432 patent claims.” Pet. at 28.
`
`5
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`This argument was not presented to the Examiner. The claims in Tranxition
`
`were similar to the ’432 patent and were not considered by the Office.
`
`C.
`
`Petitioner’s Argument No. 3
`“The claims are further similar to those in Internet
`Patents Corp. Some of the dependent claims of the ‘505
`patent in that case included the language:
`
`wherein said web page comprises quasi-static
`elements distinct from said dynamically generated online
`application form set, wherein said displaying said
`dynamically generated online application form set in
`response to the activation of said hyperlink affects the
`display of said quasi-static elements
`
`Internet Patents Corp. v. Active Network, Inc., 790
`F.3d 1343, 1349 (Fed. Cir. 2015) (emphasis added).
`
`In response to these limitations, the court noted that
`“[t]he additional limitations of these dependent claims do
`not add an inventive concept, for they represent merely
`generic data collection steps or siting the ineligible
`concept in a particular technological environment.” Id., at
`1349. Thus, claims directed to dynamically generating
`content (the online application form) in response to a user
`action (the activation of the hyperlink) was deemed to not
`be eligible subject matter despite the recited technological
`environment. The claims here are similar to those in this
`case. A user is shown a newly displayed hint based on a
`
`6
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`
`user’s action, i.e., the movement of the user’s gaze. Its
`technological basis is even further removed from that in
`Internet Patents, as it is not linked with technologies
`such as hyperlinks or web forms. Instead, the claim
`simply recites that the user’s gaze moves from a first to a
`second area, and that the information to be provided is
`simply recited as “to-be-provided information.” Pet. at
`29-30 (Prong 1 of Step 1 of Alice analysis).
`
`This argument was not presented to the Examiner. The Office did not
`
`provide any substantive analysis of Internet Patents, nor was this case considered
`
`at Step 1 of the Alice analysis. That is, Petitioner provided a detailed analysis of
`
`Internet Patents in its argument that the claims of the ’432 patent recite an abstract
`
`idea, while the Examiner merely included Internet Patents in a string cite for the
`
`proposition that the claims do not provide significantly more than the abstract idea
`
`at Step 2 of the Alice analysis. Step 1 and Step 2 require separate analyses of the
`
`claim as a whole and are thus different arguments. Ex. 1018 at *12-13.
`
`D.
`
`Petitioner’s Argument No. 4
`“[A]ttention is drawn to the claims of the ’432
`patent
`that
`recite
`“providing…to-be-provided
`information” under the condition of “when the information
`providing condition is satisfied.” Aside from failing to
`recite any non-abstract means of performing these steps,
`the claims lack a positively recited step for determining
`whether the condition is satisfied. There is no necessary
`
`7
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`requirement in the claims that the information providing
`condition has to be checked or determined. The claimed
`process simply displays an image with the “first area” and
`“second area.” Such open-ended claims, directed at a
`result, and not limited to “inventive means,” have been
`repeatedly rejected by the Federal Circuit, and should be
`rejected here as well. See In re TLI Commc’ns, 823 F.3d
`at 612-13; Internet Patents, 790 F.3d at 1348 (claims
`invalid where they claimed a result with “no restriction on
`how the result is accomplished”). Pet. at 31.
`
`This argument was not presented to the Examiner. The Office did not
`
`analyze the effect of the conditional limitations on the § 101 analysis.
`
`E.
`
`Petitioner’s Argument No. 5
`“The concept claimed in the ’432 patent is for
`providing information based on a movement of a player’s
`gaze within a game environment. This activity consists
`entirely of mental steps that can be carried out by a human.
`Consider the common scenario of traffic control at a
`parking lot. A driver looks forward while driving, similar
`to gazing at a “first area” as in the claims of the ’432
`patent. Subsequently, the driver looks to a parking
`personnel, similar to gazing at a “second area” in the
`claims. In response, but not before so as not to confuse
`other drivers,
`the parking personnel provides
`information, e.g., a hand gesture or sign, as to where the
`driver should park her car. This is similar to providing
`
`8
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`
`the to-be-provided information in response to the gaze
`position of the user moving from the first to the second
`area.” Pet. at 26.
`
`“That the claims are performed by a controller
`having a generic processor and storage, along with an
`HMD that has a display and input to sense the movement
`of the player, does not preclude a finding that they recite
`a mental process. Rather, “claims requiring a generic
`computer…may still recite a mental process even though
`the claim limitations are not performed entirely in the
`human mind.” October 2019 Update at 8. As previously
`shown, the Background section of the ’432 patent states
`that an HMD capable of detecting movement of the body
`part of the user and to display information based on that
`movement is well known. The ’432 patent does not
`modify these generic capabilities of the HMD in its
`claimed process.” Pet. at 26-27.
`
`This argument was not presented to the Examiner. The claims recite metal
`
`steps as outlined in this analogy not considered by the Office.
`
`Moreover, the Petition did not raise substantially the same arguments as were
`
`considered by the Office because neither the Examiner nor Patent Owner
`
`independently addressed the eligibility of the dependent claims. Rather, the
`
`Examiner conducted a single analysis that addressed all of claims 1-9 together
`
`without separately considering whether the additional limitations recited in the
`
`9
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`dependent claims, for example, add or limit the independent claims from which they
`
`depend. Ex. 1002 at 71-76. Similarly, Patent Owner argued the eligibility of the
`
`claims as a single grouping, with the sole exception being a lone parenthetical noting
`
`that claim 7 recites the information provision display being displayed in close
`
`associate with a moving body. Ex. 1002 at 53. By contrast, Petitioner
`
`independently addressed the eligibility of each dependent claim and explained why
`
`each claim failed to meaningfully limit claim 1. Petition at 39-41. For example, the
`
`Petition addressed that (1) dependent claims 2-5 recite conditional limitations and do
`
`not require any additional steps to be performed, thereby not further limiting
`
`independent claim 1 and (2) dependent claims 6-7 recite descriptive features of the
`
`printed matter “information” and provide no additional limitation as to the operation
`
`of the process. Id. Additionally, Petitioner highlighted the ’432 patent’s failure to
`
`recite or explain the meaning of various dependent claim features and concluded that
`
`the claims recite broad limitations that could be performed mentally. Petition at 40.
`
`Hence, for purposes of § 325(d), the detailed analysis of the dependent claims in the
`
`Petition was neither (1) “the exact same” nor (2) “substantially the same” as the
`
`arguments considered by the Office.
`
`III. The Result Is Inconsistent With Eight Other Cases Between the Parties
`in Which the Board Found the Claims Ineligible
`Finally, the Board misapprehended Petitioner’s argument that the claims are
`
`directed to managing and playing a game. Petition at 25-31. In doing so, the Board
`
`10
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`reached a result inconsistent with eight other cases between the parties that
`
`addressed very similar subject matter.
`
`For example, as in the ‘432 patent, the claims in PGR2018-00029 recited
`
`managing and playing a game and purported to improve gameplay by solving a
`
`problem relating to the user experience in existing social games. Final Written
`
`Decision (Paper 45), PGR2018-00029 (Aug. 14, 2019) at 3. Specifically, the claims
`
`sought to create an “improved visual effect” by “consecutively emphasizing panels
`
`when displaying the battle scene.” Id. Similarly, the purported improvement in
`
`PGR2018-00036 was the display of a reward box that “let the player know that the
`
`reward can be acquired by defeating [an] enemy character,” thus motivating the
`
`player to continue participating in the game. Final Written Decision (Paper 31),
`
`PGR2018-00036 (Sept. 3, 2019) at 3. In both cases, the Board identified the way of
`
`managing and playing the game as an abstract idea, concluded that the claimed
`
`functions amounted to nothing more than instructions to perform generalized steps
`
`of the abstract idea on generic computer hardware, and invalidated the claims under
`
`§ 101. PGR2018-00029 at 27, 30, 41, 52, PGR2018-00036 at 19-20, 24-25. Similar
`
`results were reached in five other cases between the parties.1
`
`
`1 See Ex. Final Written Decision (Paper 42), PGR2018-00008 (Jan. 2, 2019) at 32
`
`(concluding that “creating and applying a template of positions of one or more
`
`11
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`Here, too, the claims purport to solve a problem relating to the user experience
`
`by providing information for display in “more immersive way” through the use of an
`
`
`game contents” is a method of organizing human activity and “a social activity
`
`governed by the rules and instructions of a game”); Final Written Decision
`
`(Paper 42), PGR2018-00039 (Sept. 6, 2019) at 25, 28 (concluding that that
`
`“determining a procedure for a video battle game” is abstract because it is a mental
`
`process and that the claims are “drawn to rules of playing a game, which are a
`
`certain method of organizing human activity that has been found to be abstract.”);
`
`Final Written Decision (Paper 36), PGR2018-00055 (Sept. 23, 2019) at 23
`
`(determining that the claims “recite following rules (specifically rules for a battle
`
`game), which is a certain method of organizing human activity that has been found
`
`to be abstract.”); Final Written Decision (Paper 32), PGR2018-00060 (Sept. 26,
`
`2019) at 22 (holding that claims reciting “sending notifications about an item in a
`
`game” are directed to a “certain method of organizing human activity” and
`
`specifically “following rules or interactions”); and Final Written Decision
`
`(Paper 22), PGR2019-00018 (June 2, 2020) at 15 (concluding that “the claims
`
`recite following rules or instructions, a certain method of organizing human
`
`activity, which Petitioner phrases as ‘the abstract idea of associating game objects
`
`and moving one or more of the objects.’”).
`
`12
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`information provision display in a second area of the virtual space. POPR at 3, 7.
`
`Like those rendered ineligible in PGR2018-00029 and PGR2018-00036, the claims
`
`of the ‘432 patent recite the abstract idea of managing and playing a game, here, by
`
`providing information to the player based on the movement of the player’s gaze.
`
`That the claims include a processor, storage, and HMD is insufficient to render them
`
`eligible. Rather, as in the cases noted above, these generic computing components
`
`do no more than merely implement the abstract idea on a computer or use the
`
`computer as a tool to perform the abstract idea.
`
`Additionally, each of these claim sets recite rules or instructions for playing a
`
`game and, in several of these cases, Petitioner analogized the claims to those held
`
`ineligible in In re Smith, 815 F.3d 816 (Fed. Cir. 2016). For example, in PGR2018-
`
`00036, the Board concluded that “the idea underlying the claims is nothing more
`
`than an ‘if-then’ rule or instruction for playing the game” involving the display of
`
`information (a reward box) to the user. PGR2018-00036 at 13-14. The instant
`
`claims also recite such “if-then” gameplay rules by providing information if the
`
`information providing condition is satisfied and are, like the claims held ineligible in
`
`PGR2018-00036, not meaningfully distinguishable from In re Smith.
`
`Even the examiner’s articulation of the abstract idea recited in the ’432
`
`patent demonstrates the similarity of these claimed concepts. For example, while
`
`Petitioner and the examiner identified different abstract ideas, the examiner’s
`
`13
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`conclusion that the claims recited “conducting a game by collecting, analyzing and
`
`displaying game data” could just as easily have referred to several of the claimed
`
`concepts noted above. Ex. 1002 at 72. The similarity between these claimed
`
`concepts demonstrates that the Board’s decision not to institute Post-Grant Review
`
`of the ’432 patent is inconsistent with its previous decisions identifying similar
`
`abstract ideas for managing and playing a game.
`
`Accordingly, the Board abused its discretion by denying the Petition.
`
`Petitioner respectfully requests that the Board rehear the Decision and grant
`
`institution based on all grounds raised in the Petition.
`
`
`
`Dated: December 14, 2020
`
`
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`/Rajiv P. Patel/
`Rajiv P. Patel
`Reg. No. 39,327
`Attorneys for Petitioner Supercell Oy
`
`
`
`
`14
`
`

`

`PGR2020-00063
`Petitioner’s Request for Rehearing
`CERTIFICATION OF SERVICE
`(37 CFR §42.205)
`
`
`The undersigned hereby certifies that the foregoing Petitioner’s Request for
`
`Rehearing Under 37 C.F.R. §42.71 and accompanying Exhibit 1018 were served on
`
`December 14, 2020 by filing the documents through the Patent and Trial Appeal
`
`Board End to End System, as well as delivering copies via electronic mail upon
`
`attorneys of record for the Patent Owner:
`
`Scott A. McKeown
`Ropes & Gray
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`scott.mckeown@ropesgray.com
`
`Brendan F. McLaughlin
`Ropes & Gray
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`brendan.mclaughlin@ropesgray.com
`
`
`
`
`Dated: December 14, 2020
`
`
`
`Kenya Chow
`Ropes & Gray
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303-2284
`kenyna.chow@ropesgray.com
`
`
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`/Rajiv P. Patel/
`Rajiv P. Patel
`Reg. No. 39,327
`Attorneys for Petitioner Supercell Oy
`
`
`
`
`15
`
`

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